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Halloween is upon us and college students all across the country will be celebrating this day by dressing up in a wide array of costumes. While some students will probably stick to classic costumes such as ghosts and vampires, some others may be thinking about slipping into scarier, more politically incorrect costumes this Halloween. For instance, in 2005, at the University of Chicago a group of students found themselves in trouble for holding a “Straight Thuggin’ Party” where students listened to rap music and dressed in hip-hop attire. Should students be afraid of disciplinary action for wearing potentially offensive Halloween costumes?

As far as the law is concerned, students at public colleges shouldn’t be afraid of official punishment even if their costumes are in poor taste. Federal courts have consistently held that symbolic speech and entertainment performances (such as wearing a costume) enjoy First Amendment protection. Although the Supreme Court has never dealt with this issue directly, at least one appellate court has directly addressed the topic of offensive costumes on college campuses. In Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, the 4th Circuit Court of Appeals upheld a district court decision that invalidated sanctions against a fraternity which held an “ugly woman contest” that featured a performer who dressed as an offensive caricature of an African American woman by donning black face and wearing a wig with long stringy black hair and curlers. In affirming the district court, the appeals court reasoned that even low-grade entertainment is protected by the First Amendment and a university cannot punish speech based solely on its perceived offensiveness.

Despite the clear indication from courts that even offensive costumes are protected, the censoring of costume parties has becomes something of a yearly ritual at both private colleges that promise free speech and public colleges bound by the First Amendment. In fact, the latest incident seems to be coming from the persistently problematic administration at Johns Hopkins University. Stay tuned for more on that today.